1992 PLP 311 (MLD)

Syed Jamshed Ali for Petitioners. Rana Muhammad Arshad Addl. A: G. for Respondents Nos.1 and

4. Nemo for Respondents Nos.2 and

3. Date of hearing: 2nd May, 1990. In this Constitutional petition registration of a case through FIR No.608/89 Police Station Model Town, Gujranwala, registered on 20-7-1989 under section 409/420/466/468/218/471/104/167, P.P.C. and section 5 of Act II of 1947 has been challenged.

2. The facts forming the background of this case shortly stated are that petitioner No.1 lodged F.I.R. No.218/80 at Police, Station Model Town, Gujranwala, under section 448/440/379, P.P.C. against respondents No.2 and 3 who are father and son respectively. Respondents Nos.2 and 3 were challaned. The case property was one wooden door and 20 ballas. The learned trial Magistrate through order dated 18-2-1984 acquitted respondents Nos.2 and 3 under section 249-A, Cr.P.C. No order was passed in respect of disposal of the case property. Respondent No.2 made an application before the learned trial Magistrate for delivering the case property to him which was rejected through order dated 12-9-1987. Respondent No.2 filed revision petition against the said order before the learned Addl. Sessions Judge which was allowed through order dated 13-2-1989 and it was ordered that respondent No.2 be delivered the case property.

3. Subsequently on 18-3-1989 respondent No.2 made an application before the learned Addl. Sessions Judge against petitioner No.1 and the other petitioners that direction be issued for registration of case against them regarding the case property in the above case under sections 409/420/218/466/468/471, P.P.C. read with section 5 of Act II of 1947. The learned Addl. Sessions Judge entertained the said application and transmitted the same to Ilaqa Magistrate for holding inquiry and his report. The learned Ilaqa Magistrate submitted his report to the learned Addl. Sessions Judge who passed order on 12-7-1989 that the application be sent to the S.H.O. who was directed to register a case against the petitioners. Consequently in pursuance of the said direction a case was registered against the petitioners on 20-7-1989 through F.I.R. No.608 at Police Station Model Town, Gujranwala, which has been challenged in this Constitutional petition.

4. It was argued by the learned counsel for the petitioners that under the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the offences with which the petitioners have been charged and case registered against them are scheduled offences, therefore, only Anti-Corruption Establishment constituted under section 3 of the said Ordinance could investigate such offences and hold preliminary inquiries in order to determine whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held. According to the learned counsel under section 6 of the said Ordinance the Government has promulgated rules known as Punjab Anti-Corruption Establishment Rules, 1985, which do not permit the registration of a case and its investigation under the said Ordinance for scheduled offences whether committed by public servant exclusively or by any other person jointly with public servants by any other agency.

5. I have examined the said rules alongwith the provisions of the said Ordinance. Under section 3 of the Ordinance the Government has been empowered to establish Anti-Corruption Establishment. The said sections of the P.P.C. under which the said F.I.R. was got registered are scheduled offences. The said offences committed by public servants jointly with other person are to be tried and investigated in accordance with the provisions of the said Ordinance and the rules made thereunder. Rule 6 of the Punjab Anti Corruption Establishment Rules, 1985 provides that preliminary inquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources. Under rule 7 a Deputy Director or an officer of or above his rank has been empowered to initiate preliminary inquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint /information. Rule 8 of the said Rules deal with the registrations of case against public servants and any other person who commits offences jointly with public servants. This rule provides that criminal cases shall be registered by the Establishment under the Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance. According to this rule a criminal case shall be registered against public servant under a written order of officer of Establishment mentioned in sub-clauses (a), (b) and (c) of sub-rule (2). The case against the public servant in BPS 1 to 16 according to this rule can be registered under the written orders of an officer not below a Deputy Director and against public servants in BPS 17 and 18 under the orders of the officer not below an Additional Director and against civil servants in BPS-19 and above by a Director. Rule 15 provides that the case after registration could be dropped in the circumstances mentioned therein. Petitioners Nos.2 and 3 are undoubtedly public servants whereas petitioner No.1 is the person who was complainant in the said case in which respondents Nos.2 and 3 were acquitted who were alleged to have committed scheduled offences jointly with petitioners Nos.2 and

3. A close scrutiny of the relevant provision of law as discussed above leaves no doubt that the case against the petitioners could not have been p registered except under the orders of the officers mentioned in Rule 8 as discussed above. In this view of the matter, the direction of the learned Addl: Sessions Judge for registration of case against the petitioners and consequent registration of case through F.I.R. No.608 dated 20-7-1989 at Police Station Model Town, Gujranwala was also illegal being superstructure raised on an illegal direction given by the learned Addl. Sessions Judge. The S.H.O.P'S. Model Town, Gujranwala was not authorised under the law to register the said case and investigate it.

6. The writ petition is accepted. The order of learned Addl. Sessions Judge, Gujranwala dated 12-7-1989 for registration of case and registration of case through F.I.R. No.608 Police Station Model Town, Gujranwala, dated 20-7-1989 are hereby declared to have been passed and registered without lawful authority and of no legal effect and quashed. There will be no order as td costs.

7. It is, however, clarified that the competent authorities under the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and the Rules of 1985 framed thereunder may if they are so minded proceed to register the case against the petitioners. Respondents Nos.2 and 3 may also approach the said competent authorities for registration of case against the petitioners which if registered shall be investigated and disposed of in accordance with law. N.H.Q./M-155/L Petition accepted.